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Bar News - October 20, 2006


US Supreme Court Year-End Report Chief Justice Roberts Calls for Fewer Fractured Decisions


In a May 21 commencement speech at    Georgetown University Law School, Chief Justice John G. Roberts Jr. called on the Court to issue fewer fractured decisions and to remember that unanimous or near-unanimous opinions further the rule of law by promoting “clarity and guidance.”

In fact, the Court did issue 26 unanimous decisions throughout the term, including two in cases in which Samuel A. Alito Jr. did not participate (because he had not yet joined the Court when the cases were argued). In Rumsfeld v. Forum for Academic and Institutional Rights, the Court voted 8-0 to uphold the so-called Solomon Amendment, a federal law that requires universities to grant military recruiters access that is “at least equal in quality and scope” to the access it provides other recruiters or else face the loss of all federal funding. And in Gonzales v. 0 Centro Espirita Beneficente Uniao do Vegetal, the Court ruled 8-0 that the government had so far failed to demonstrate a “compelling interest” in barring a religious sect from engaging in the “sacramental use” of a hallucinogenic tea known as hoasca.

           

The Court also decided eight other cases in which no dissents but at least one concurring opinion were filed. Still, by the time the Court issued its final decisions for the Term on June 29, it was clear that, at least when it comes to the most controversial (and hence most-watched) cases, the chief justice is going to have his hands full trying to forge any convincing consensus on this Court. In all, 16 of these cases were decided by a bare five-vote majority.

           

The problem facing the chief justice in this regard is that in high-profile cases such as Hamdan v. Rumsfeld, Justices Antonin Scalia, Clarence Thomas, and Alito tend to align their votes with Roberts, while Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer do not. It is thus frequently left to Justice Anthony M. Kennedy to determine the outcome of the case, either by casting his lot with one faction or the other, or even, as he did in Rapanos v. United States, by creating a 4-1-4 result after writing an opinion no other justice would join.

           

In Hamdan, for example, Kennedy, along with Souter, Ginsburg, and Breyer, joined Stevens’s opinion that the military commissions established by the Bush administration at Guantanamo Bay lack the power to proceed because their struc-ture and procedures violate both the Uniform Code of Military Justice and the Geneva Conventions.

           

Kennedy even ended up writing an opinion in League of United Latin American Citizens v. Perry that headed up a conservative majority for one aspect of the case (rejecting a charge of illegal gerrymandering brought against Republican statewide redistricting moves in Texas) and a liberal majority for another (upholding a Voting Rights Act challenge to the dismemberment of a specific Latino-majority congressional district).

           

Meanwhile, the 4-1-4 result that Kennedy’s lone opinion caused in the Rapanos case had the immediate effect of leaving a cloud of doubt over the true contours of federal jurisdiction to regulate wetlands under the 1972 Clean Water Act. The broader impact of Kennedy’s opinion, however, may have been the defiant message it sent to the rest of the Court and particularly to the chief justice, whose Georgetown speech was then less than a month old.

           

“It is unfortunate that no opinion commands a majority of the Court,” the chief justice noted in Rapanos. “Lower courts and regulated entities will now have to feel their way on a case-by-case basis.”

 

“The Court’s Year-End Update,” was previously published by the ABA Division for Public Education in Law Matters, Summer 2006. Copyright by the American Bar Association. Reprinted with permission.

 

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